NISHA M. THAKORE, J.

1. Heard Mr. Japan Dave, learned advocate for the applicant- original complainant and Mr. Nadeem Mansuri, learned advocate for the respondent no.2- original accused. Rule returnable forthwith. Mr. Mansuri, learned advocate waives service of Rule on behalf of respondent no.2- original accused and Mr. Mehta, learned Additional Public Prosecutor waives service of Rule on behalf of respondent State.

2. This application is filed seeking leave to appeal under Section 378(4) of the Code of Criminal Procedure challenging the judgment and order dated 5.3.2022 passed by the learned Additional Chief Judicial Magistrate, Metropolitan Court, Ahmedabad in Criminal Case No.77283 of 2017. By the said judgment and order, the learned Magistrate has proceeded to record the acquittal of respondent no.2 – original accused for the offence punishable under Section 138 of the Negotiable Instruments Act.

3. Learned advocate for the applicant has invited attention of this Court to the reasons assigned by the learned Magistrate and has submitted that the learned Magistrate has not accepted the defence raised by the respondent-accused. However, the learned Magistrate has proceeded to record the acquittal of respondent – accused by accepting the defence of the respondent-accused to the extent of financial ability of the original complainant to extend the hand land to the respondent as contended in his complaint. Learned Advocate has relied upon the judgment of the Hon’ble Supreme Court in the case of Tedi Singh vs. Narayan Dass Mahant reported in 2022 Live Law (SC) 275 and has submitted that in absence of any defence being raised at the first instance while responding to the legal notice, the learned Magistrate ought not to have permitted the accused to raise such defence for the first time in the cross examination of the complainant.

4. On the other hand, learned advocate for the respondentaccused has relied upon the judgment of the Coordinate Bench of this Court in the case of Brahmbhatt Kalicharan Babubhai vs. State of Gujarat and ors rendered in Criminal Appeal No.1674 of 2016 dated 14.6.2022, whereby, this Court has held that the presumption which is available under Section 139 of the Negotiable Instruments Act is only to the extent that it raises presumption in favour of the holder of the cheque that the same has been issued for discharge of any debt or other liability whereas the existence of legally recoverable debt cannot be considered in the matter of presumption under the said Section. By relying upon the aforesaid principle, learned advocate for the respondentaccused has submitted that even assuming for a moment that the approach of the learned Magistrate was not correct in permitting the respondent -accused to raise the defence of financial ability for the first time in the cross examination, it was for the complainant to prove his case beyond reasonable doubt, more particularly, the fact of existence of legally recoverable debt against the present respondent- accused. He, therefore, objected to grant of leave to appeal.

5. Responding to the aforesaid submission of learned advocate for the respondent – accused, learned advocate for the applicant has once again invited attention of this Court to the reasons recorded by the learned Magistrate and has submitted that the defence of the challenge to the existence of the legally recoverable debt has emerged on record in the form of defence raised by the accused while responding to the legal notice as well as during the trial Court proceedings, the learned Magistrate has in fact not accepted such defence and has assigned cogent reasons while dealing with the submission of existence of transaction with the son. In support of his submission, he has relied upon the judgment of the Hon’ble Supreme Court in the case of P Rasiya vs. Abdul Nazer and Another reported in 2022 Law Suit (SC) 1026 and has urged this Court to grant leave to appeal.

6. Learned advocate for the respondent – accused has submitted that the aforesaid judgment would not apply in the facts of the present case.

7. Heard the learned advocates for the respective parties and having perused the impugned judgment and order and the authorities relied upon, prima facie, the Court finds that even keeping aside the aspect of financial ability, applying the principle laid down by the Coordinate Bench of this Court in the case of Brahmbhatt Kalicharan Babubhai (supra), the question which falls for consideration would be the existence of legally recoverable debt against the respondent-accused, as against which, learned Magistrate, upon the appreciation of the evidence, has arrived at a finding that defence of the respondent -accused about existence of transaction with the son of the respondent- accused is not made out. In the opinion of this Court, an arguable case is made out and appeal deserves consideration. Hence, the present application is allowed and Leave to Appeal, as prayed for, is hereby granted.

Order in Criminal Appeal No.858 of 2022.

8. Admit. Expedited. Learned Additional Public Prosecutor waives service of admission on behalf of respondent State and Mr.Mansuri, learned advocate waives service of admission on behalf of the respondent no.2. Registry is directed to call for the Record and Proceedings of the case from the concerned Court.